High Court Assails Racially Stacked Juries

February 26, 2003|By STEPHEN HENDERSON; Knight Ridder Newspapers

WASHINGTON — Black defendant. All-white jury. Death sentence.

It's a scenario that unfolds all the time in American courtrooms. And for years, death penalty opponents have said it's often not by accident: Prosecutors sometimes purposefully eliminate black jurors in capital cases.

In a strongly worded opinion issued Tuesday, an eight-justice Supreme Court majority expressed disdain for the practice of racially stacking juries. The court criticized the Dallas district attorney's office for indulging it, and ordered an appeals court to consider a Texas death-row inmate's claim that racial bias inspired prosecutors in his case to strike 10 of 11 possible black jurors.

The decision affects prisoners who believe they have constitutional challenges to their convictions, and it provides indirect -- but important -- support to those who claim that race taints jury selection.

But the opinion also came with a notable twist: The lone dissenter was the court's only black justice, Clarence Thomas. In his own strong words, he said that the Texas inmate's proof of discrimination was weak and that the case for historical bias on the part of Dallas prosecutors was circumstantial.

David Garrow, an Emory University law professor and Supreme Court historian, said there's likely a complex explanation for Thomas' take on discrimination claims.

``It's quite possible that his desire to never be knee-jerk on racial issues leads him to deny the existence of discrimination more than any other justice,'' Garrow said.

Garrow said in obvious cases with blatant racial symbols, like the Virginia cross-burning case that inspired a rare Thomas soliloquy on racial hatred last fall, the justice finds discrimination a simpler matter. But in other cases, Thomas might apply stricter standards to prove a point.

The court's opinion sent the case of Thomas Miller-El, convicted of a 1985 murder, back to a lower court. The high court said that the Fifth Circuit Court of Appeals erred in not granting Miller-El a hearing on his claim that Dallas prosecutors struck hopefuls from his jury simply because they were black.

Writing for the majority, Justice Anthony M. Kennedy was careful not to decide the merits of Miller-El's claims (the court left that for the lower bench to do) but also went out of his way to decry Dallas prosecutors' conduct and the office's alleged history of racially stacking juries.

He wrote that ``statistical evidence alone'' made prosecutors' motives debatable, given that they excluded 91 percent of the eligible black jurors from serving in Miller-El's trial and used 10 of their total 14 pre-emptory challenges to remove African Americans. Each side in a court case is granted a limited number of pre-emptory challenges that it can use to unilaterally dismiss prospective jurors without offering a reason for dismissal.

Kennedy went on to say that the race-neutral explanations prosecutors offered for striking black jurors also could have been applied to white jurors who were not challenged.

Kennedy wrote that Miller-El had offered persuasive evidence to suggest that prosecutors questioned prospective black jurors differently than white jurors, and that the office's history of racially stacking juries (as documented in several other cases) carried weight.

``The court could have just said the lower court erred and left it at that,'' said George Kendall, a staff attorney with the NAACP legal defense fund, which filed a friend-of-the-court brief in the case. ``Instead, they wrote a long opinion that looked at a lot of this evidence. Clearly, they were troubled by what they saw.''

Jim Marcus, one of Miller-El's appellate attorneys, said the case would have impact because of the way lower courts have been treating claims like his client's.

``The court is saying is that the appeals court didn't carefully review all of the relevant evidence in this case, which they often don't do,'' Marcus said. ``It simply deferred to the state court's assertion that the prosecution hadn't discriminated. The court is saying that's inappropriate.''

In his dissent, Thomas called Miller-El's case a loser and said it lacked ``clear and convincing evidence of purposeful discrimination.'' He gave more weight than the majority did to prosecutors' race-neutral explanations for dismissing black jurors. And he said the allegations of disparate juror questioning amounted to ``little of substance.''